Opinion
DOCKET NO. A-1868-12T4
01-09-2014
BRIDGEWATER-RARITAN EDUCATION ASSOCIATION on behalf of TAMARA MANZUR, CAROL O'NEIL AND MAGGIE CASSIDY, Petitioners-Appellants, v. BOARD OF EDUCATION OF THE BRIDGEWATER-RARITAN SCHOOL DISTRICT, SOMERSET COUNTY, Respondent-Respondent.
William P. Hannan argued the cause for appellants (Oxfeld Cohen, PC, attorneys; Sanford R. Oxfeld, of counsel and on the brief). Douglas M. Silvestro argued the cause for respondent Bridgewater-Raritan Regional Board of Education (Schwartz Simon Edelstein & Celso, LLC, attorneys; Nicholas Celso, III, of counsel and on the brief; Mr. Silvestro on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Leone.
On appeal from the New Jersey Department of Education, Docket No. 125-5/11.
William P. Hannan argued the cause for appellants (Oxfeld Cohen, PC, attorneys; Sanford R. Oxfeld, of counsel and on the brief).
Douglas M. Silvestro argued the cause for respondent Bridgewater-Raritan Regional Board of Education (Schwartz Simon Edelstein & Celso, LLC, attorneys; Nicholas Celso, III, of counsel and on the brief; Mr. Silvestro on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Frederick H. Wu, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
The Bridgewater-Raritan Education Association appeals on behalf of its members Tamara Manzur, Carol O'Neil, and Maggie Cassidy. The Association asserts that the Board of Education (Board) of the Bridgewater-Raritan School District (District) must award Manzur tenure as a matter of law, and should award all three members tenure as a matter of equity. The Board, and the Commissioner of Education, argue that the Commissioner properly upheld the summary decision in favor of the Board by the Administrative Law Judge (ALJ). We affirm.
I.
It is helpful first to set forth the statutes governing tenure. At the relevant time, N.J.S.A. 18A:28-5 provided in pertinent part that a person employed in the position of a regular teacher shall be tenured after employment for:
(a) Three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or
(b) Three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or
(c) The equivalent of more than three academic years within a period of any four consecutive academic years.
[N.J.S.A. 18A:28-5 (1999).]
This section was amended in 2012 to increase these periods for current employees, but that amendment has no effect on this litigation. See N.J.S.A. 18A:28-5(a), (b) (2012); L. 2012, c. 26, § 28.
Replacement or substitute teachers are governed by a different statute, which enables a board of education to designate a person "to act in place of any officer or employee during the absence, disability or disqualification of any such officer or employee." N.J.S.A. 18A:16-1.1. However, the statute provides that "no person so acting shall acquire tenure in the office or employment in which he acts pursuant to this section when so acting." Ibid. Thus, "under N.J.S.A. 18A:16-1.1, substitute teachers do not earn credits toward tenure." Donvito v. Bd. of Educ. of N. Valley Reg'l High Sch. Dist., 387 N.J. Super. 216, 222 (App. Div. 2006).
II.
Before the ALJ, Manzur, O'Neil, and Cassidy filed affidavits, which must be taken as true for purposes of summary decision and this appeal. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535 ( 1995); Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 121 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996).
Manzur's affidavit stated that she began working in the District as a replacement teacher in January 2006. She interviewed for an opening in the Eisenhower Intermediate School to teach sixth grade for a "teacher who was going to be on maternity leave for the entire [2006-07 school] year." Nonetheless, the school principal told her that her "employment for that school year would count towards [her] acquisition of tenure." Manzur began in that position in September 2006. She received her first teacher's contract on January 2, 2007. Soon thereafter the District's superintendent of schools, Dr. Michael Schilder, confirmed that "time spent replacing a teacher on maternity leave counted toward tenure" in the District. Manzur remained in the District because she was informed that the time she spent replacing a teacher on maternity leave would count toward tenure. Had she known that it would not count, she would have looked elsewhere for a tenure-track position.
Manzur was rehired to serve again as a sixth-grade teacher in the same school for the 2007-08 school year. She states that "at no time was [she] informed that [her] employment for that school year was as a replacement teacher for a teacher on maternity leave." Manzur was then transferred to teach fifth grade for the 2008-09, 2009-10, and 2010-11 school years. It is undisputed that the fifth-grade position was a "tenure-track" position for which she earned credit towards tenure.
In September 2009, she received a letter from Dr. Schilder saying that, by statute,
only time in a permanent position can be counted toward the three years required to earn tenure. Therefore, any time worked in a position in which the prior incumbent is or was on leave of absence cannot count toward tenure under the NJ Education tenure statute.
In your case, your tenure earning start date is 9/1/2008 and you will earn tenure on 9/2/2011. Since you were a leave
replacement for Concetta Fischer from 1/2/07 to 6/30/07, this time does not count toward tenure.
Cassidy's affidavit stated that she had been employed in another school district replacing a teacher on maternity leave in another school district, which she was told would not count toward tenure. She sought employment in the District to get a tenure-track position. She was told by Dr. Schilder and the supervisor of special education that, under the District's policy, serving as a replacement would count toward tenure. Based on that assurance, she accepted employment in the District as a replacement for a teacher on maternity leave for the 2007-08 school year, and received a teacher's contract.
Cassidy was subsequently rehired for the 2008-09, 2009-10, and 2010-11 school years in what was undisputedly a tenure-track position. Cassidy received a letter from Dr. Schilder stating that the 2007-08 school year would not count towards tenure, and that her projected tenure date would be September 2, 2011.
O'Neil's affidavit states that she was hired by the District from March to June 2007 to replace Karen Bauer, a teacher going on maternity leave. The school principal told her that period would not count towards tenure "because there could not be two teachers contracted for the same position." When O'Neil was rehired for the same position for the 2007-08 school year, she was not told that she would be a leave replacement. The principal told her that school year would count towards tenure because she was working under a teacher's contract.
O'Neil was rehired for the 2008-09, 2009-10, and 2010-11 school years, and was told she continued on the tenure track. In September 2009, she received a letter from Dr. Schilder saying she would not receive tenure until September 2012, indicating that he considered her a replacement teacher for the 2007-08 and 2008-09 school years. Had she known that earlier, she would have sought a position elsewhere.
The ALJ determined, and O'Neil does not dispute, that O'Neil was a replacement teacher for the 2007-08 and 2008-09 school years because her evaluations for those school years stated that she was serving "as a Grade 4 maternity leave replacement for Mrs. Karen Bauer."
Because the District did not count the disputed years for the three members, it treated them as non-tenured, and did not renew the contracts of Manzur, Cassidy, and O'Neil after the end of the 2010-11 school years. The Association filed a petition of appeal to the Commissioner, who referred the dispute to the ALJ. On October 5, 2012, the ALJ issued an initial decision granting summary judgment, which the Commissioner affirmed on November 12, 2012. The Association appeals.
III.
We must hew to our limited standard for judicial review of administrative agency action. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Group, ___ N.J. ___ (2013) (slip op. at 20). "An appellate court may reverse an agency decision if it is arbitrary, capricious, or unreasonable." Ibid.
[T]he judicial role [in reviewing an agency action] is generally restricted to three inquiries: (1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Id. at 20-21 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
Here, the ALJ granted the Board's motion for summary decision under N.J.A.C. 1:1-12.5, which is equivalent to a motion for summary judgment under Rule 4:46-2. Contini, supra, 286 N.J. Super. at 121. A summary decision can be granted "if the papers and discovery which have been filed, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b). The "agency must determine 'whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Contini, supra, 286 N.J. Super. at 122 (quoting Brill, supra, 142 N.J. at 523). On appeal, we apply the same standard. E.S. v. Div. of Med. Assistance & Health Servs., 412 N.J. Super. 340, 350 (App. Div. 2010).
IV.
The Association claims that Manzur earned tenure as a matter of law. First, it argues that she was not replacing a teacher on maternity leave during the 2007-08 school year. However, as the ALJ noted, Manzur had the same assignment in 2007-08 as she had when she admittedly was "a leave replacement for Concetta Fischer from 1/2/07 to 6/30/07," namely teaching sixth grade at Eisenhower Intermediate School. Dr. Schilder's calculation indicating Manzur would earn tenure on "9/2/2011" was consistent with her remaining a replacement teacher in the 2007-08 school year, even if he did not mention that latter period.
More importantly, nowhere did Manzur's affidavit allege that she was not replacing another teacher during the 2007-08 school year, but only that she was never told she was replacing another teacher that year. Manzur thus failed to raise a genuine issue of fact disputing the Board's position that she was replacing another teacher in the 2007-08 school year. A party opposing a motion for summary decision "must by responding affidavit set forth specific facts showing that there is a genuine issue which can only be determined in an evidentiary proceeding." N.J.A.C. 1:1-12.5(b); Contini, supra, 286 N.J. Super. at 121.
Second, the Association argues that Manzur is entitled to tenure credit because she was not explicitly told she was still replacing Fischer in 2007-08. However, the Legislature did not require such notice, despite requiring notice to teachers of other information. E.g., N.J.S.A. 18A:6-4.15 (qualification for employment), N.J.S.A. 18A:6-11 (misconduct charges), N.J.S.A. 18A:27-3.2 (termination), N.J.S.A. 18A:27-10 (non-renewal); see N.J.S.A. 18A:27-11 (requiring continued employment if notice of non-renewal is not given). We expect that "if a notice requirement was necessary, the legislature would have so provided for it in the statute." See Carine v. Cliffside Park Bd. of Educ., 161 N.J. Super. 137, 140 (Law Div. 1978); see also Inwood Owners v. Little Falls, 216 N.J. Super. 485, 492 (App. Div.) (finding it inappropriate to add a requirement to a statute "which the legislature has obviously not included"), certif. denied, 108 N.J. 184 (1987). Furthermore, the Commissioner has adopted the ALJ's ruling in this case that such notice is not required by the New Jersey State School Laws. The Commissioner's interpretation of the tenure statutes "is entitled to great weight." Nelson v. Bd. of Educ., 148 N.J. 358, 364 (1997). The Association cites no authority requiring this court to upset that interpretation.
In any event, the absence of such notice does not entitle Manzur to tenure. "Tenure is a statutory right that depends on a teacher's satisfying specific statutory conditions." Kletzkin v. Bd. of Educ., 136 N.J. 275, 278 (1994). Notice or not, Manzur apparently did not serve as a regular teacher for the statutorily-required period. "Tenure arises only upon compliance with the precise conditions articulated in the statute." Picogna v. Bd. of Educ. of Cherry Hill, 143 N.J. 391, 400 (1996). Although "tenure laws are to be liberally construed," we must follow the construction that is "reasonable in light of the plain language of the controlling statutes." Lammers v. Bd. of Educ., 134 N.J. 264, 272 (1993). Furthermore, courts should not "create exceptions to the clear language of N.J.S.A. 18A:28-5 based on policy considerations." See Spiewak v. Bd. of Educ., 90 N.J. 63, 80 (1982). Given the clear statutory requirements for tenure, we decline to create an alternative non-statutory method of acquiring tenure based on lack of notice.
In addition, we must consider the nature of tenure itself. A tenured teacher has a right to a position from which she can be removed only in circumstances provided by statute. Lammers, supra, 134 N.J. at 273. When a replacement teacher fills in for a tenured teacher on maternity leave, the position filled by a replacement teacher "'is the place of another which that other will reclaim when [her] period of absence is over.'" Id. at 268 (emphasis by Court) (quoting Sayreville Educ. Ass'n v. Bd. of Educ., 193 N.J. Super. 424, 428 (1984)).
Thus, awarding tenure credit to a replacement teacher could result in more tenured teachers than positions. Further, "a board of education would have to incur the expense of providing duplicative benefits if both the substitute and the absent teacher were to be regarded as simultaneously entitled to all of the statutory and contractually mandated benefits of regular staff membership." Sayreville, supra, 193 N.J. Super. at 430. "To award plaintiff the remedy she wants, a new entitlement that the Legislature never intended would have to be created," potentially "at the expense of the teacher who is on a leave of absence." See Lammers, supra, 134 N.J. at 274.
The Association mistakenly relies on Sayreville. There, we addressed the opposite situation where teachers were filling positions made vacant by resignation or retirement. Sayreville, supra, 193 N.J. Super. at 426-27. We ruled that such teachers earn tenure credit because they were filling "vacant" positions. Id. at 426-30.
In Sayreville, we contrasted such teachers filling vacancies with substitute or replacement teachers who cover "the temporary absence, even if protracted, of a regular teacher whose return to duty is contemplated," and who thus cannot earn tenure credit under N.J.S.A. 18A:16-1.1. Id. at 427-28. We reaffirmed that "a long-term substitute should not be deemed a teaching staff member in the case of the temporary absence of the regular staff member." Id. at 433 (citing Driscoll v. Clifton Bd. of Educ., 165 N.J. Super. 241 (App. Div.), aff'd o.b., 79 N.J. 126 (1979)). Our Supreme Court has since agreed that the distinction "between a vacancy and an absence is unmistakable,even if [the absence is] protracted,'" like the "one-and-one-half-year maternity leave" in Driscoll. Lammers, supra, 134 N.J. at 268-69 (emphasis by Court) (quoting Sayreville, supra, 193 N.J. Super. at 428).
Manzur's affidavit did not dispute that she was covering a long-term absence rather than filling a vacancy. Thus, we reject Manzur's claim to tenure as a matter of law.
V.
The Association argues that Manzur, Cassidy, and O'Neil are entitled to tenure as a matter of equity. It cites the alleged statements by the District's superintendent and other supervisors that each member would receive tenure credit for the disputed years even though they were serving as replacements for regular teachers who were on maternity leave.
In addressing this claim, we must again consider the statutory nature of tenure. N.J.S.A. 18A:16-1.1 specifically forbids tenure credit for teachers serving as replacements for regular teachers on maternity leave. Moreover, the statutory scheme "defines with specificity the requirements [a teacher] had to satisfy before [s]he could acquire tenure." Picogna, supra, 143 N.J. at 401. N.J.S.A. 18A:28-5(a) requires service as a regular teacher for three calendar years, "or any shorter period which may be fixed by the employing board for such purpose." Under this provision, only the Board could have authorized a shorter period for tenure. See Picogna, 14 3 N.J. at 402; Rall v. Bd. of Educ., 54 N.J. 373, 377-78 (1969). There is no similar statutory provision allowing a school district's administrators to shorten the time for tenure.
We assume without deciding that this provision also allows the employing board to shorten the three-academic-year requirement defined in N.J.S.A. 18A:28-5(b).
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Moreover, only the Board may appoint teachers and determine their terms of employment. N.J.S.A. 18A:27-1, -4. "It is long-settled in education law that the representations of individual board members or administrators are insufficient to bind a board to a particular course of action." Gross v. Bd. of Educ., AGENCY DKT. NO. 305-9/04; No. 298-06, 2006 N.J. AGEN LEXIS 931, *8-9 (Comm'r Sept. 1, 2006) (citing decisions). Reliance "on the opinions and assurances of" administrators is "misplaced, since opinions and assurances cannot stand in the stead of deliberate Board action." Id. at *9 (quoting Dorrington v. N. Bergen Bd. of Educ., 1982 S.L.D. 247 (quoting Brennan v. Bd. of Educ. of Pleasantville, 1977 S.L.D. 1059)). Thus, "[a]s a general rule, public bodies such as boards of education cannot be bound by the oral representations of even high ranking officials such as the business administrator, superintendent of schools, or school board attorney." Gross v. Bd. of Educ., OAL DKT. NO. EDU 8567-04, 2006 N.J. AGEN LEXIS 719, *19 (Initial Decision July 26, 2006), adopted, AGENCY DKT. NO. 305-9/04; No. 298-06, 2006 N.J. AGEN LEXIS 931 (Comm'r Sept. 1, 2006). This long-standing interpretation by the Commissioner "is entitled to great weight." Nelson, supra, 148 N.J. at 364.
We recognize that the members here were not experienced teachers, as was the petitioner in Gross. However, the members' contracts stated that they were employed by the Board, not by the building principal, the superintendent of schools, or the District. They thus had some knowledge of the "hierarchical nature of public education." Gross, supra, AGENCY DKT. NO. 305-9/04; No. 298-06, 2006 N.J. AGEN LEXIS 931 at *9. They also knew their contracts with the Board for the disputed years said nothing about tenure credit.
The Association nonetheless claims that the members are entitled to tenure under the doctrine of apparent authority, citing Restatement (Third) of Agency, § 2.03 (2006). However, comment g to § 2.03 provides:
g. Governmental actors. The doctrine of apparent authority generally does not apply to sovereigns and entities that have been created by sovereigns to achieve governmental ends. Unless a sovereign or entity can be estopped to deny the agent'sWe are persuaded by this comment, just as our courts have followed other parts of § 2.03. E.g., N.J. Lawyers' Fund for Client Prot. v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010); Estate of Cordero, ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306, 312, 314-15 & n.3 (App. Div. 2008). Indeed, we have similarly ruled:
lack of authority, such principals are bound only by acts within the scope of the agent's actual authority. The underlying principle is that a sovereign has the exclusive ability to prescribe what its creations and its agents may do; third parties who deal with national governments, quasi-governmental entities, states, counties, and municipalities take the risk of error regarding the agent's authority to a greater degree than do third parties dealing through agents with nongovernmental principals.
Statutes delegating powers to public officers must be strictly construed, and all persons dealing with public officers must inform themselves as to their authority, and acts which are within the apparent but in excess of the actual authority of officers will not bind the government which they represent, unless ratified by it.Thus, we conclude that apparent authority is inapplicable here.
[Remedial Educ. & Diagnostic Servs., Inc. v. Essex Cnty. Educ. Servs. Comm., 191 N.J. Super. 524, 529 (App. Div.) (citation omitted), certif. denied, 97 N.J. 601 (1983).]
The Association next invokes equitable estoppel, but "equitable estoppel is rarely invoked against the government." In re Johnson, 215 N.J. 366, 386 (2013). "This is so because 'matters of public interest and legislative will should not be easily compromised by freely applying the doctrine of estoppel to irregular municipal conduct.'" Cnty. of Morris v. Fauver, 153 N.J. 80, 104 (1998) (citation omitted). Equitable estoppel can only be applied against a governmental entity "'to prevent manifest injustice.'" Ibid. (quoting O'Malley v. Dep't of Energy, 109 N.J. 309, 316 (1987)). Even then, it may not be invoked if it will "'interfere with essential governmental functions.'" O'Malley, supra, 109 N.J. at 316 (quoting Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954)).
Again, the nature of tenure weighs heavily in our decision. To require the Board to grant tenure through equitable estoppel forces it to grant tenure protection to a teacher whom it chose not to hire after a probationary period. See id. at 316-17 (refusing to allow a provisional employee to obtain a permanent position through equitable estoppel because "the legislative goal of appointments based on merit and fitness is the paramount consideration"). Moreover, it could compel the Board to have more tenured teachers than positions, and to pay two sets of salaries and benefits for the same tenured position. Because granting tenure by equitable estoppel would interfere with the essential government function governed by the tenure statutes, we decline to do so. See Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999) (rejecting "plaintiff's contention that he is entitled to tenure as tax assessor based on the doctrine of estoppel"); Cutler v. Borough of Westwood, 295 N.J. Super. 344, 352 (App. Div. 1996) (concluding that estoppel does not "justify a grant of tenure"), certif. denied, 149 N.J. 143 (1997).
Furthermore, a party seeking equitable estoppel must show "a knowing and intentional misrepresentation by the party sought to be estopped under circumstances in which the misrepresentation would probably induce reliance, and reliance by the party seeking estoppel to his or her detriment." O'Malley, supra, 109 N.J. at 317. Here, the Board itself made no misrepresentation. See Kaprow v. Bd. of Educ. of Berkeley Twp., 131 N.J. 572, 590 (1993). The alleged statements were made by supervisors of the District. Because they lacked the authority to alter the statutory terms of tenure, "any promises, representations or agreements by" them to the members with respect to their earning of tenure are "ultra vires." See Maltese v. Twp. of N. Brunswick, 353 N.J. Super. 226, 237 (App. Div. 2002) (finding ultra vires any representations by a mayor regarding salary, compensation or benefits, which the mayor had no authority to set). As such a representation was "utterly beyond the jurisdiction" of District personnel, it was "ultra vires in the primary sense," and cannot be a basis for equitable estoppel. See Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 368 (2000).
In any event, the facts do not indicate a manifest injustice. The three members knew they were employed by the Board, not the District. Further, both Cassidy and O'Neil admittedly knew that replacements for teachers on maternity leave did not accumulate tenure credit, at least in some circumstances. The Association conceded at oral argument that there is no evidence the District supervisors knew they were mistaken in their alleged representations. After receiving Dr. Schilder's 2009 letter correcting any misrepresentations, each of the three members remained employed with the District, and had almost two more school years to show worthiness for tenure. It was therefore not arbitrary, capricious, or unreasonable for the Commissioner to decline to award tenure through equitable estoppel.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION